Punishing Students for Extracurricular Online Activities: Crossing the Line?

by Andy Carvin, 9:39AM

Last week, an Illinois school district adopted a new policy towards student online activities that’s already stirring up a lot of controversy. All students in the Libertyville-Vernon Hills Area High School District 128 participating in extracurricular activities will now have to sign a pledge saying they will not post inappropriate content on the Internet or they will face disciplinary action. The catch, though, is that the pledge also applies to online activities done outside of school. Will this decision stand up to legal scrutiny?

“There are things that students and parents need to be aware of when they put information out in the public domain,” said assistant superintendent Prentice Lea.

The school board voted Monday to redo its code of conduct to include online postings. Starting next year, any student who goes online to post threats, pictures of themselves drinking or smoking, or in sexually suggestive poses will face an investigation and possible disciplinary action.

Any illegal or inappropriate behavior students post online could get them in trouble. Some students say it crosses a line. “They have no right to do it,” said Julia Galachenko.

Alex Koroknay-Palicz, of the National Youth Rights Association, echoes that view. “Just like they were scared of Elvis with his hip thrusts, they’re scared of rock music, they’re scared of punk music,” he said. “They’re scared of anything new that comes along that young people embrace.”

This isn’t the first time that schools have tried to discipline students for online activities outside of school. Since the early days of the Web, schools have tried to curtail their students’ online activities from home - and failed. In 1995, a student in Washington state named Paul Kim had his National Merit Scholar recommendation pulled because he created a parody of his school’s website that lampooned the behavior of his fellow students. Even though he never mentioned it in school, his principal got wind of it and revoked her recommendation for him. Kim’s $2000 merit scholarship was revoked. So he contacted the ACLU.

The ACLU filed a complaint on Kim’s behalf, citing the US Supreme Court case known as Tinker v. Des Moines School District. In that case, a student named John Tinker was suspended along with his sister and a friend for wearing anti-war black armbands to school. The case went all the way to the Supreme Court, which sided with the students. According to the Tinker ruling, students’ right of free expression would be protected except in cases where that expression “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” And in perhaps the most famous line of the ruling, Justice Abe Fortas wrote, “It can hardly be argued that either students or teachers shed their constitutional right to freedom of speech or expression at the schoolhouse gate.”

Based on this logic, the ACLU argued that student activities conducted outside of school grounds should be equally protected. “High schools certainly may not exercise more control over off-campus behavior than over on-campus conduct, and such control must be based on the standard of substantial interference with the normal operations of the school,” they wrote in their complaint to the school district. Eventually, the school district settled out of court, realizing that legal precedent was on Kim’s side. They also issued a public apology for punishing him inappropriately.

A few years later, another student named Brandon Beussink was suspended for 10 days for creating a website from home that contained vulgar commentary about the school. Beussink went to court and succeeding in getting an injunction preventing the school from disciplining him. U.S. District Judge Rodney Sippel, who issued the injunction, also cited the Tinker precedent in his December 1998 ruling. “Disliking or being upset by the content of a student’s speech is not an acceptable justification for limiting student speech under Tinker,” he wrote in the injunction. Sippel continued:

Beussink was not disciplined on February 17, 1998 because he was disrespectful or disruptive in the classroom. Beussink was disciplined because he expressed an opinion on the Internet which upset [the school principal]…. Indeed, it is provocative and challenging speech, like Beussink’s, which is most in need of the protection of the First Amendment. Popular speech is not likely to provoke censure. It is unpopular speech that invites censure. It is unpopular speech which needs the protection of the First Amendment. The First Amendment was designed for this very purpose. Speech within the school that substantially interferes with school discipline may be limited. Individual student speech which is unpopular but does not substantially interfere with school discipline is entitled to protection.

It’s no surprise that schools have become extra sensitive to student online activities in the wake of school shootings like Columbine and Red Lake. But even in this context, courts have sided with students’ free speech rights outside of the classroom. In February 2000, high school student Nick Emmett created a website that included fake obituaries of several fellow students. The obituaries were inspired by a creative writing assignment, but local media got wind of them and described them as an online “hit list.” Reacting to the news coverage, the school expelled Emmett.

The following week, U.S. District Court Chief Judge John Coughenour issued a restraining order against the district:

In the present case, [Emmett’s] speech was not at a school assembly… and was not in a school-sponsored newspaper…. It was not produced in connection with any class or school project. Although the intended audience was undoubtedly connected to Kentlake High School, the speech was entirely outside of the school’s supervision or control.
The [school district] argues, persuasively, that school administrators are in an acutely difficult position after recent school shootings in Colorado, Oregon and other places. Web sites can be an early indication of a student’s violent inclinations, and can spread those beliefs quickly to like-minded or susceptible people. The defendant, however, has presented no evidence that the mock obituaries and voting on this web site were intended to threaten anyone, did actually threaten anyone, or manifested any violent tendencies whatsoever. This lack of evidence, combined with the above findings regarding the out-of-school nature of the speech, indicates that [Emmett] has a substantial likelihood of success on the merits of his claim.

The pattern is familiar: facing community or media pressure, a school punishes a students for online activities taking place outside of the school. Again and again, the schools are forced to rescind the punishment and settle out of court. The question is, though, will the Libertyville-Vernon Hills policy face the same legal end?

Perhaps not. The district is applying the policy only to students participating in extracurricular activities, which are generally deemed as a privilege and not a right. If the district were to hold all students accountable to this policy, I think they would have a hard time supporting it in court. Because it only applies to after-school activities, the district might be able to argue that they can raise the bar on expecting “appropriate” behavior among the students participating in these activities.

It’s the same argument used by schools who require drug testing of student athletes. In 2002, the Supreme Court ruled in Board of Ed v. Earls that schools could conduct random drug tests on students participating in extracurricular activities. Lindsay Earls, an Oklahoma honors student, sued her school after being forced to take the test, which she found to be “accusatory and humiliating.” (Her test came back negative.) The court sided with the school. “We find that testing students who participate in extracurricular activities is a reasonably effective means of addressing the school district’s legitimate concerns in preventing, deterring, and detecting drug use,” Justice Clarence Thomas wrote for the court. Would the Supreme Court say the same thing about a school’s legitimate concerns over inappropriate online content?

At most, though, I can’t imagine a school punishing students more than barring them from extra-curricular participation. Anything harsher than that would probably raise the spectre of the Tinker case and land the district in hot water. It’s just hard to say how much Board of Ed vs. Earls would be a factor as well.

Even though I’m not an attorney, I find the intricacies of free speech-related constitutional law utterly fascinating. If you’re interested in these cases and the legal justification used to rule on them, you may want to take a look at an in-depth analysis I wrote on the subject for the Benton Foundation. In the meantime, the constitutional geek inside of me will be eagerly awaiting some kid to take the school district to court. No matter who won the day, it would make for a fascinating case. -andy

Responses

I think there is a real difference between a student saying something the administration doesn’t like, which is clearly to me free speech, and a student posting pictures or other evidence of breaking school rules. Generally students in sports and the like agree not to drink, smoke or use drugs. How the school finds out about breaking those rules should not really be at issue as long as the school breaks no laws to find out. If a student freely admits to breaking rules on their blog they have no real claim that they should be exempt for the rule they broke.

Let’s say the student posts a pic of himself smoking a joint or beating someone up - both against the law. Does the school have the right to kick a student off of any extracurric activities because of that? Probably. But the policy is written so they can discipline students for “inappropriate behavior.” I’m concerned about the vagueness of this term. Illegal activities are clearly inappropriate, but what about behavior that is merely politically incorrect or rude? If a student publishes content that’s legitimately critical of his teachers, for example, would that be inappropriate, or would that be exercising free speech? In the classroom, one could get in trouble for that. But outside of the school? That’s getting into tricky constitutional waters…. -andy

Andy, I have been discussing this case with some other educational lawyers and our consensus opinion is that while it is possible for school districts to include restrictions from extracurricular activities as a possible “consequence” of posting harmful material online, the Tinker standard would still apply in making a determination of whether or not the school has the authority to impose any consequence to off-campus online speech.

That is, the harmful off-campus online speech must still meet the standard of “substantial and materiaal disruption or threat of disruption in the work of the school or interference with the rights of students” before the school could legitimately restrict student participation in extracurricular activities.

All of the cases that have addressed participation in extracurricular activities have involved off-campus activities related to drinking, smoking, and doing drugs — all illegal activities. It is one thing for school officials to say “you can’t play football because you were caught doing drugs,” and quite another thing for a school official to say, “You can’t participate in debate club because you exercised your constitutionally protected right to free speech in a way that we consider ‘inappropriate.’”

Based on the language in the Tinker case, I believe school officials have much more leeway in responding to off-campus online harmful speech that is negatively impacting another student than they do responding to speech targeting staff. But in all cases, there are still many steps school officials can legitimately take to respond to such speech—many of which will be far more effective.

These include:

Contacting the student’s parents and showing them what their child has posted. Usually this will result in prompt removal and discipline.

Contacting the site and requesting the material be removed — these sites generally have terms of use policies that disallow harmful speech.

Advising the person targeted by the speech to contact an attorney to determine their legal recourse.

Educating the student who has posted the harmful speech about the harm caused by such speech.

Schools also need to pay attention to how they are managing student Internet use through the district system. In some cases, students may be using the district system to post such speech—thus giving school officials much greater ability to respond.

There is a full legal analysis of these issues in my book Cyberbullying and Cyberthreats: Responding to the Challenge of Online Social Cruelty, Threats, and Distress.

I was really hoping you’d post something here. I just wanted to respond to one particular point you made:

Based on the language in the Tinker case, I believe school officials have much more leeway in responding to off-campus online harmful speech that is negatively impacting another student than they do responding to speech targeting staff.

So for example, if a student were using the Net to cyberbully another student, I think there’d be grounds for punishment, since cyberbullying can certain impact the educational process, even if it occurs outside the classroom. Is this an example of what you had in mind?

There are no cases involving really harmful materiaal that targets other students and is causing emotional harm — school avoidance, school failure. The only case that involved student speech targeting students is the Emmett case, which did not involve speech that caused other students significant emotional harm. So, we do not really know how courts will interpret this situation.

The original language in Tinker was: “There is here no evidence whatever of the petitioners’ interference, actual or nascent, with the school’s work or of collision with the rights of other students to be secure and left alone.”

Based on this language, I think that schools do have more ability to intervene when the off-campus, online speech is interfering with the rights of a student to feel secure at school. A strong argument can be made that the combination of the students being together at school (a school nexus) and the emotional harm caused by the speech can be made in some cases would justify the imposition of formal discipline. We know that students who are bullied suffer from school failure and sometimes commit suicide or engage in school violence. All of these factors, I believe, strengthen the hand of the district in supporting a formal response. The same factors are not present when addressing speech targeting teachers or other staff. Also, if the speech is really bad and has harmed a staff member, this staff member does have civil law remedies. But with students, who also would have such remedies, school officials need to be morfe strongly focused on stopping the harm as rapidly as possible.

Here is an example where I think the principal was totally justified in responding to material posted online. Several students were invioved in an altercation on campus, which the principal thought he had resolved. One of the students was black. Shortly thereafter, the two white students created a MySpace site that was horribly racist and threatening. Other students in the school had signed onto this site. In about 3 weeks, the black student found out and reported this to both the principal and the black student organization.

So ask: Is there a threat of substantial disruption? You betcha. The principal handled the situation very well. He knew of the possibility of impersonation and so he identified some of the other students through their pictures and first interviewed them to ensure he could clearly identify the key participants. He downloaded the material. He called the parents in for a meeting and he suspended the students who created the site. He could also have filed a complaint to have the materials removed from MySpace, but he did not know this was an option. The parents had the material remmoved very promptly. A really nice thing happened at the school — the following day many students had, on thier own accord, made and posted many “no racism” signs in the halls. Many of the teachers used the incident as a “teqachable moment.”

I think the principal’s actions were totally legally justified. If these students had also been on a sports team, I also think he would have been justified in pulling them off the team. But only because their off-campus, harmful online speech met the standard established by Tinker.

I had sent this to Andy and some lists where the question was raised about the extent of the technology that the policy in question covered. Andy asked me to repost here:

Here is the specific policy from the district (what they added is the last line):

“2. Exhibit gross misconduct or behavior/citizenship that is considered detrimental to his/her team or school. Student-athlete behaviors must be in compliance with acceptable standards of conduct as per the current edition of the Student Parent Handbook. Some examples of inappropriate behavior may include, but are not limited to illegal acts, theft, fighting, vandalism, aiding and abetting, lying to school officials, falsifying information/signatures on permit or permission forms, hazing, bullying, or intimidating acts. Maintaining or being identified on a blog site which depicts illegal or inappropriate behavior will be considered a violation of this code.”

It is clear that this district is technically unsophisticated district. Note the reference to a “blog.” The district has not yet even figured out what a blog is or is not. Most of the material posted on social networking sites, like MySpace, Xanga, Bebo, etc is not technically a posted to a blog.

Part of the problem in this area is that we have school administrators trying to figure out how to handle issues that are legitimately of their concern — but they do not have the requisite understanding of what young people are doing online to know what they need to know to effectively respond. In my state, Oregon, there is no requirement for administrative licensure related to legal issues and managing student use of technology.

Section 1 of the policy (which I did not post) addresses alcohol, tobacco, and drugs issues. Any student who shows up in an online photo engaging in these activities could be subject to the policy without any change in the policy.

But read closely and note the vagueness — Would a student investigative reporter who obtains photos of school “jocks” smoking dope just off-campus and publishes these on his or her “blog” be in violation of this policy? Looks like it to me.

Also note, the term “inappropriate behavior” would likely need to be read in accord with the prior parts of this policy, which by the clear language of the policy is: “Some examples of inappropriate behavior may include, but are not limited to illegal acts, theft, fighting, vandalism, aiding and abetting, lying to school officials, falsifying information/signatures on permit or permission forms, hazing, bullying, or intimidating acts”. Essentially, this again demonatrates that the online speech would need to meet the Tinker standard.

This district has not gotten any further beyond the bounds of the Tinker standard in terms of what constitutes “inappropriate.” They merely have added another possible formal disciplinary consequence — exclusion from extracurricular activities.

This reminds me of Article 92 in the Uniform Code of Military Justice - ‘conduct unbecoming’. Used wisely, it could be useful - but it most certainly could be abused. In the Navy, I saw one person get courtmartialed for spitting on a locker - citing Article 92. It was an excuse to get rid of someone, which actually works fairly well in the military. Of course, that’s the military.

An extreme way of viewing it would be intellectual eugenics, a less conspiratorial way would be a manner of allowing students to be disciplined…

Clearly, lines have to be drawn. Yet I worry at pledges like that. For one, if they are under 18, they are not legally bound, and further, they have to have an explicit understanding of what is ‘inappropriate’.

Personally… it would seem to me that instead of ‘carte blanche’ inappropriateness, rules be created and modified regarding what is indeed inappropriate. Let it evolve better and let us understand what evolves before we indiscriminately give some authority which can be easily abused.

If a tenth the effort and money was spent on supporting educators and students to find positive uses of the Internet as there were finding negative ways to cripple it, we would be way better off all around.

In the immortal words of Donald “Oddball” Sutherland from the movie “Kelly’s Heroes”:

“Why don’t you knock it off with them negative waves? Why don’t you dig how beautiful it is out here? Why don’t you say something righteous and hopeful for a change?”

There seems to be general agreement that because this deals with extracurricular activities, it gives schools more leeway to hold students accountable for the off-campus conduct.

The concern seems to be the vague word “inappropriate”. I’m not a lawyer and don’t know if the policy could be challenged based on the word itself.

Yes it is broad, but can someone give me a word or wording that is specific enough so as to include all things that the school could do legally and exclude those that they could not?

It would seem to me that the word “inappropriate” would be defined by the actions of the school district if they choose to take action against a student. Would it not be at that point that someone can challenge whether the student action was inappropriate?

This is in regards to the comment, “It is clear that this district is technically unsophisticated district.”

I am not sure being technically savvy is necessary in the creation of good policy. It is not relevant whether is is a blog site, a social network site, or a personal page. The focus of the policy ought to be on the behaviors exhibited.

Additionally, this particular post mentions, “In my state, Oregon, there is no requirement for administrative licensure related to legal issues and managing student use of technology.”

Again, I don’t think this is a technology related issue, this is a student behavior issue and one that has existed for a long time. These issues are also issues the principals and administrators have dealt with for a long time, I just think it is too easy to let technology cloud the issue.

In fact, I usually counsel our administrators to take technology out of the equation to make it easier. If a student showed you a photo of another student with a vodka bottle in hand, what conclusions could you act upon? Could you suspend the student from a sport for being is possession of alcohol? (Was it really alcohol in the bottle? Was that really the student in question in the photo?). If I were a student disciplined for a photo someone had, I would press really hard to ensure the district had adequate proof of wrong-doing - not because I would want to be a pain, but because I think too many people are drawing conclusions on evidence that is not so reliable.

In my opinion, we should not approach this problem as a technical one - it gives leeway for people to “pass the buck” or claim ignorance. This is a student behavior issue.

Well, we must ask if any behavior off school does indeed affect behavior on school, then under these circumstances I think this school district is correct in attempting to control, or at least punish, the acts off school that do affect behavior at school.

One great debate among my K-12 friends is the role school plays in regards to social behaviorial training, or citizenship. Most education professionals agree with me that K-12 is often more the training ground for citizenship than learning, with both being equally important. Since this is a public school, what is wrong with punishing inappropriate citizen behavior that takes place in the local public community? Or, do we as public educators resort to ignoring the criminal minds and acts, despicable behaviors, and social ignorance of our students under the umbrella of “out of sight out of mind.”

I agree with school districts researching a students’ online activities if there is reason to believe the school or other students may be at risk for harm. However, simply placing students under “disciplinary action” for “innapropriate conduct” while positng things online, away from school functions, is unacceptable. Why does the school district get the right to decide what behaviors are considered “approptiate” or “inappropriate?”

I feel that it is compleletly inappropriate for schools to become this “involved” in student’s lives. First of all, not allowing students to post pictures of underage drinking, drug use, nudity and so-on….is not the school’s responsiblity to control or to punish students — If a student is viewing these pictures on a site such as Myspace during school hours, then yes, maybe some consequences should result, but to simply not allow it is ridiculous…. High school students break the law, sports players too (proabably more so than other groups) —- it happens.

Last week my 13 year old brother was suspended from school for mooning a girl in his school. This incident didnt happen during school hours, nor was it on school property…The situation occured at 7:30 PM, 4 miles from school, and for some odd reason the school felt that this was in their realm. The principal recieved a statement from one of the girls who was mooned, the principal apparently took her word, and suspended 7 boys for 4 days.

My point being is that, schools should have a limit on how far they go with punishment outside of school activities.

Is there any protection for teachers under this law? I am being “dismissed” from my job because of a post I made online about a student during non-school time on my own computer. This comment was made during a stressful day and was in no way meant to be read by anyone. It was merely an outlet for me to vent.

Unfortunately, the parent of this same student who was already quite upset with me for having given his child a lower than expected grade made it his personal mission to find something wrong with me. For lack of a better set of words, it’s been a witch hunt ever since.

Though I have had an exemplary record and my students, principal, and superintendent are supporting me, and see my action as a mistake (for which I have already been reprimanded for) my school board has decided to “dismiss” me based on this one, out of school comment.